Wildman v. State

165 So. 2d 396, 42 Ala. App. 357, 1963 Ala. App. LEXIS 205

Opinions

CATES, Judge.

'Wildman went to trial on four indictments returnable to the Marengo Circuit Court:

1) Case No. 5337, a charge of assault with intent to murder Earl Crawford, •a policeman of the City of Demopolis;

2) Case No. 5338, wherein he was accused of second degree burglary ■against the Braswell Hardware Company in Demopolis;

■3) Case No. 5339, for larceny of $1500 •from the Braswell Hardware Company; •and

4) Case No. 5340, breaking and entering the warehouse of Merchants Grocery Company with intent to steal (second degree burglary).

Wildman, advised by counsel, agreed in open court that the four cases be tried together. The jury brought in four separate verdicts of guilty and the judge gave judgment and sentence on each verdict separately.

We consider that there was no evidence to support Wildman’s conviction of assault with intent to murder nor of the burglary of Merchants Grocery Company. Nelson v. State, 29 Ala.App. 121, 192 So. 594. We distinguish Tyra v. State, 17 Ala. App. 92, 82 So. 631, as to No. 5340.

Grand larceny and burglary are of the same kindred of crimes. Where the identical transaction is the foundation, a verdict of guilt of one excludes a like finding of the other. Lawson v. State, 33 Ala.App. 333, 33 So.2d 405.

Therefore, it was error to receive both of the verdicts arising from burglary and larceny at Braswell Hardware Company. See Lucas v. State, 144 Ala. 63, 39 So. 821, 3 L.R.A.,N.S., 412; Wilkerson v. State, 41 Ala.App. 265, 130 So.2d 348.

The defendant did not except to the oral charge. The court having failed to tell the jury that as to the two charges arising from the breaking and entering of the Braswell Hardware Company only one conviction (on the two indictments) was legally possible, made it incumbent upon himself (the court) to return the two verdicts for a choice by the jury. The constitutional bar of punishment beyond once for an act but once done was Judge Carr’s reason in Lawson v. State, supra.

The judgments are reversed and the proceedings remanded to the circuit court.

Reversed and remanded.